Best Practices in Fair Use

TWO: QUOTING COPYRIGHTED WORKS OF POPULAR CULTURE TO ILLUSTRATE AN ARGUMENT OR POINT DESCRIPTION: Here the concern is with material (again of whatever kind) that is quoted not because it is, in itself, the object of critique but because it aptly illustrates some argument or point that a filmmaker is developing—as clips from fiction films might be used (for example) to demonstrate changing American attitudes toward race.

PRINCIPLE: Once again, this sort of quotation should generally be considered as fair use. The possibility that the quotes might entertain and engage an audience as well as illustrate a filmmaker’s argument takes nothing away from the fair use claim. Works of popular culture typically have illustrative power, and in analogous situations, writers in print media do not hesitate to use illustrative quotations (both words and images). In documentary filmmaking, such a privileged use will be both subordinate to the larger intellectual or artistic purpose of the documentary and important to its realization. The filmmaker is not presenting the quoted material for its original purpose but harnessing it for a new one. This is an attempt to add significant new value, not a form of “free riding” —the mere exploitation of existing value.

LIMITATIONS: Documentarians will be best positioned to assert fair use claims if they assure that:
1) the material is properly attributed,either through an accompanying on-screen identification or a mention in the film’s final credits;
2) to the extent possible and appropriate,quotations are drawn from a range of different sources;
3) each quotation (however many may be employed to create an overall pattern of illustrations) is no longer than is necessary to achieve the intended effect;
4) the quoted material is not employedmerely in order to avoid the cost or inconvenience of shooting equivalent footage.

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